Criminal law - Sentencing - Assault occasioning bodily harm - Domestic circumstances - Sentence of immediate imprisonment justified - Plea of guilty - Necessity to take into account

1 McKECHNIE J: This appeal came before me on 31 October 2007 as an application for bail. On that date I granted bail and adjourned the matter until today, directing that the application for leave to appeal and the appeal be heard together and determined at the same time. Having considered the matter further and examining the papers, all of which I have read before today, I concluded that it would be appropriate to grant leave to appeal and so this effectively becomes the hearing of the appeal. I will refer hereafter then to the applicant as the appellant.

2 The appellant pleaded guilty to a charge that on 30 March 2007, at Daglish, he assaulted the complainant and thereby did her bodily harm in circumstances of aggravation; namely, that he was in a family and domestic relationship with the victim of the offence. The circumstances giving rise to that offence were set out by the prosecutor and were accepted by the appellant:

The complainant is a 31-year-old oriental woman who stands 155 centimetres in height. She is of a slight build. The accused and the complainant were in an intimate personal relationship during the two months prior to this offence having met on the Internet. At about 4.45 pm on Friday, March 30, 2007 the complainant attended the accused's residence at flat 4, number 52 Cunningham Terrace in Daglish.

The accused had been drinking alcohol since midday with a male friend and at about 6.30 pm the friend left the address. The accused instigated an argument with the complainant about her spending time with a girlfriend on the forthcoming Sunday and not spending the day with him. The accused became enraged and commenced to hurl verbal abuse at the complainant.

The accused grabbed her about the body and pushed her into a chair in the lounge room. The complainant commenced to shout out for help in a bid to alert neighbours. The complainant stood up. The accused again pushed her down into the chair. The accused repeatedly slapped the complainant about the face, at the same time yelling at her:

'This relationship is going to end tonight. I'm going to beat you and it's going to hurt. You're going to die tonight. How do you say you're going to die in Chinese?'

He next forcibly grabbed her around the throat, restricting her windpipe almost to the point of making her lose consciousness. The accused continually repeatedly slapped the accused about the face and choked her over a period of several minutes. Throughout the assault the accused made verbal references to disposing of the complainant's body, utilising a helicopter or aeroplane and of committing suicide and causing the complainant to generally be in fear of being killed by him.

The complainant struggled to break free of the accused's hold and escape but was unsuccessful. The accused next threw the complainant onto the bed in a bedroom where he continued to choke her until she nearly passed out and repeatedly slapped her about the face. He dragged her by the arms back into the lounge room and at the same time saying to her:

'Do you think you're stronger than me. Do you think you can run away from me?'

The complainant conceded that she could not. The accused suddenly calmed down and advised the complainant that she was free to leave the premises, however immediately informed her that he was in possession of two firearms which he offered to show her. Having regard to the accused's previous behaviour, his reference to firearms, the complainant was apprehensive of his motives for her allowing her to now leave fearing that he would harm her if she tried to do so.

The complainant attempted to pacify the accused by making him dinner. Whilst both were eating the meal, the accused again became increasingly angry and abusive towards the complainant. At some stage the accused got up and went into the bedroom. The complainant seized the opportunity to escape the flat, grabbing her belongings. She ran out a front door to her motor car which was parked in the carpark of the flats. The accused chased her and unsuccessfully attempted to prevent her from driving off by trying to open the back passenger's door of the vehicle as she was reversing out. The complainant drove straight to the Perth police station and reported the matter.

The accused subsequently left several voice mail messages on the complainant's mobile phone in which he apologised for hitting her. The accused [complainant] sustained bruising, swelling and minor cuts to her face and neck region, in particular to her right eye, cheek and jaw. As a result of this assault she sustained a saw [sore] chest and claimed to have blurry vision in her right eye and she was to seek medical treatment for the injuries the next day.

3 When the matter first came before the magistrate, he regarded it as serious and had the matter adjourned for the obtaining of pre-sentence and psychological reports.

4 The essential reason advanced for the offence was the appellant's intoxication. After a full plea in mitigation at which reference was made to a number of matters in relation to rehabilitation, and which were therefore before the magistrate, he proceeded to sentence. He correctly described the facts as dreadful and cowardly. He noted the matters of mitigation upon which counsel had addressed him and which also appeared in the pre-sentence report and the documents before him. He said in relation to domestic violence:

[T]he courts have to take a line that makes it clear that it cannot and will not be tolerated. We have heard the steps Mr Elliott has taken to redress the situation and perhaps deal with that side of specific deterrence.

[T]his assault was so violent, so dreadful and so cowardly that it can only be dealt with by way of a prison sentence and if a prison sentence is not imposed for a situation like this, then it is very difficult to appreciate under what circumstances a man can go to gaol for viciously assaulting his wife.

6 The magistrate said he had given consideration to suspending the sentence but did not think it was appropriate for that to be done. He imposed a sentence of 12 months' imprisonment with eligibility for parole.

The sentence was excessive given

(a) the Appellant's behaviour at the material time was affected by a combination of alcohol and prescribed medication;

(b) the Appellant had been generally of prior good character, with his offending behaviour out of character;

(c) the Appellant's remorse, evident from his plea; and

(d) rehabilitation the Appellant had undertaken since and for his offending behaviour and his positive rehabilitative prospects.

7 Counsel had argued for a substantial fine before the magistrate. The prosecutor supported that submission. However, the magistrate, as he was entitled to do, rejected that submission and proceeded to sentence. I am conscious that this ground is not limited to the length of imprisonment, but also the submission is advanced that the sentence was excessive having regard to the fact that it was not suspended, a matter which is also raised in ground 2.

8 Leaving aside for the moment the other grounds, the sentence itself was a term of imprisonment to be served immediately. The offence occurred because of the appellant's gross intoxication on the night. It may be that the medication he was taking had some effect, but the amount of alcohol which he had consumed was quite capable of explaining the violence which he used. Nor was it the first occasion that the appellant had been in trouble because of alcohol. True it is that this was the first violent offending. However, since 2005 he had a number of convictions for offences of driving involving alcohol and, significantly on the very day of this offence, had been fined a total of $8,000 for burglary and wilful damage for offences which had occurred under the influence of alcohol.

9 His remorse is clearly evident, as are the steps he has taken toward rehabilitation. Those matters were acknowledged by the magistrate, in part, because he concluded that specific deterrence may have a lesser part to play. In the end, whether a sentence is manifestly excessive or not is conclusion and it may be difficult for an appellant to point exactly to error (although this appellant has endeavoured to do so) but the result may manifest error.

10 In my view, however, the sentence of imprisonment in relation to ground 1 was not in error. There is no offence of domestic violence. 'Domestic violence' is merely a term like 'shoplifting'. It euphemistically describes serious criminal conduct. By any measure, this was a very bad assault. Magistrates are often in a better position than judges to witness the effects of particular crimes and whether certain crimes, by their frequency or nature, require sentences of greater or lesser general deterrence.

11 The purposes of sentence are manyfold. They include focus upon the offender, rehabilitation, remorse, matters in the nature of mitigation. But there is also a public interest in general deterrence and in punishment. In my opinion the magistrate was not in error in failing to conclude at first instance whether a sentence of 12 months was appropriate.

The Magistrate failed to give proper consideration to the applicability and/or appropriateness of a lesser penalty such as a fine, but particularly a suspended sentence of imprisonment.

12 Today Mr Monisse has, I think, realistically focused on a suspended sentence rather than a fine. The magistrate took into account the question of a suspended sentence. He said so. What he said was:

I have also given consideration to the fact of suspending that prison sentence and I don't think it is appropriate for that to be done. An assault of this nature we have recently heard described I think should be dealt with by way of a prison sentence.

13 That is a very shorthand way of looking at the matter because it is true that the factors which relate to imposing the sentence also relate to the separate question of suspending the sentence. Nevertheless, in all the circumstances, I am not persuaded that the magistrate erred in the manner set out in the ground.

14 There are many examples where serious offences can be the subject of a sentence of suspended imprisonment. That principle is not in doubt, but it is a question of discretion in each case. In this case, I am not persuaded that the magistrate erred in failing to articulate more clearly the reasons for failing to suspend the sentence. I think his overall reasons were sufficient and it should be remembered that the magistrate, as I have said, had before him a pre-sentence report, which was generally favourable in recommendation, and a plea in mitigation. It cannot realistically be said that he overlooked the factor. Really it was an issue for the magistrate's discretion.

The magistrate did not give the Appellant credit for his early guilty plea.

15 Credit, or at least acknowledgment, of an early plea of guilty is a statutory requirement under s 8 of the Sentencing Act 1995 (WA). All the magistrate said was: 'You are before the court having pleaded guilty to a charge.' That was perfectly obvious.

16 It is argued magistrates are very busy, which is true, and they deal with many, many matters every day, which is also true. For that reason it is especially important for magistrates to remind themselves that an early plea of guilty, or a plea of guilty, is entitled to be given some weight. It does not necessarily have to be apportioned in terms of a percentage discount. It is quite appropriate for a magistrate to sentence by an intuitive sentencing method. However, it is necessary for a magistrate to acknowledge the fact that a plea of guilty has been made and the time at which it is made.

17 The magistrate did not acknowledge it. It is easier to infer error on review because there may be no way of knowing whether the magistrate has taken it into account. In a sense, it is difficult for magistrates, who are generally sentencing to lesser periods of imprisonment than judges, to give much weight to it, but that difficulty does not overcome the need for a magistrate to specifically acknowledge the time at which the plea is made. In failing to do so, the magistrate has made an error. I am not persuaded that the magistrate gave sufficient credit for an early guilty plea.

The Magistrate did not give the Appellant credit for the time he had spent in custody.

Particulars

1. The Magistrate erroneously considered that a sentence of less than 12 months would result in the Appellant being denied the opportunity for parole (however refer s 23 of the Sentence Administration Act 2003); and
2. The Magistrate erroneously considered that the time the Appellant spent in custody could not be taken into account (however refer 87(c) of the Sentencing Act 1995).

18 Ground 4 is conceded. The magistrate did not give the appellant credit for the time he had spent in custody. It appears clear that the appellant spent three weeks in custody for this offence and for no other, yet the magistrate erroneously considered he was unable to take it into account. He said: 'Well, I don't think you - can you backdate it if you have done three weeks previously? I don't think you can.' Clearly it can be: Sentencing Act s 87.

The magistrate did not reduce the sentence by one third to take into account the changes to the Sentencing laws.

19 Those changes were promulgated in 2003. In Worthington v State of Western Australia [2005] WASCA 72, the Court of Appeal pointed out that it is not necessary to specifically note the fact on each occasion. Looking at the sentence itself, and having regard to a notional sentence the magistrate might have passed prior to 2003, I conclude that although the magistrate failed to mention the changes to the sentencing laws - the transitional provisions - he was not in error in failing to do so and, furthermore, I consider, having regard to the sentence and the crime, that he did in fact take them into account.

20 As a result, the appeal is allowed on grounds 3 and 4. I propose to re-sentence the appellant. I reduce the sentence by 1½ months to take account of the plea of guilty, and a further week to take account of time spent in custody between sentencing and the appeal. I backdate the sentence to 24 October 2007.